Backlogs, leniency on new public records law

Attorney General Lisa Madigan has used her broad new authority over public records disputes to whittle at Illinois' long-standing culture of secrecy, but lax enforcement and a suffocating backlog of cases have left many citizens waiting in vain for the documents they seek.

While Madigan has touted her office's success shaking loose records in many of the 5,500 cases it has handled since January 2010, a Tribune analysis and dozens of interviews reveal widespread frustration and myriad problems her office attributes to growing pains.

Government agencies often rebuff the attorney general's rulings, her office fails to track whether records are ultimately turned over and her staff is so busy it can take months to resolve even basic requests.

A Northwestern University law professor waited four months for several 1961 Chicago police reports from a high-profile murder case, only to receive copies with names blacked out to protect the identities of long-dead witnesses.

A central Illinois newspaper has been trying unsuccessfully since the first days of the new law to get details about the resignations of three University of Illinois at Springfield women's softball coaches after an incident involving a player who was given a $200,000 settlement from the university.

And a 75-year-old Oak Lawn civic activist with street flooding problems has tried for more than a year to get specifics on improvements to her village's water system. She is still waiting.

"You can't fight city hall forever," said Beverly Ring, a self-proclaimed Oak Lawn gadfly. "I thought it would be a good thing for the public to know what is happening with our money. I didn't think I was asking for too much."

Madigan's top aides acknowledge problems but say the Office of Public Access Counselor has made good early progress in what will be a long effort to reverse an ingrained government reluctance to release records. They say the first year of the law was spent educating government agencies about open records, and stepped-up enforcement will come this year. They also doubled the counselor staff to tackle the load.

"We share the frustration," said Ann Spillane, Madigan's chief of staff. "Nobody thought this was going to happen overnight. But the most important thing is that people are getting records today they never would have gotten under the old law."

Most open-records advocates interviewed by the Tribune said the attorney general's new powers are helping.

"Despite all these frustrating delays, this system is still an enormous improvement from what we had before, which was nothing," said Terry Pastika, executive director of the Citizen Advocacy Center. "Under the old law, people had nowhere to go."

In an effort to assess the effectiveness of the public access counselor, the Tribune obtained and analyzed data from the office's nearly 6,500 records cases — all the closed ones plus a backlog of more than 900 files that are still under review.

While the office has cited the number of closed cases as a sign the new law is working, the Tribune found the majority of those cases ended with the attorney general's office siding with government agencies seeking to withhold records or redact information.

In slightly more than 10 percent of the closed cases — 617 — the attorney general decided records were withheld improperly, meetings were being mistakenly held in secret or agencies were erroneously asserting exemptions.

The attorney general's office argues that percentage doesn't take into account the times it resolved issues informally in favor of the public or the many cases where redacted records were released by agencies that would have denied them entirely under the old law.

When the attorney general did help, it took time. In more than half the cases where her office sided with the person seeking records, the ruling took at least three months, the analysis showed.

One common criticism of Madigan's new authority is that she almost never uses it. The overwhelming majority of rulings by the public access counselor are advisory and carry no weight or consequences for those agencies that choose to ignore them.

Only seven times has the attorney general's office used its ultimate authority by issuing a legally binding opinion. In those cases, the agency must either comply or challenge the ruling in court. Two of those binding opinions came in February against the Chicago Police Department.

One of those cases involved a Tribune request for statistical information about the number of sworn police officers in each of the city's police districts. The department refused, citing security concerns, and has announced its intention to challenge Madigan's ruling in court.

Police departments are constantly creating cases for the public access counselor because of a controversial provision in the new law that requires agencies to seek permission every time they want to redact information considered to be private — such as birth dates and addresses in police reports. But police officials often interpret exemptions too broadly, according to the attorney general's office.

The public access counselor disagreed with Chicago police decisions to withhold records nearly three dozen times, including the case involving a 50-year-old investigation into the murder of a school teacher.

Northwestern University's Center on Wrongful Convictions of Youth has questions about the conviction of a 14-year-old student — now a 65-year-old man long released from parole — and law professor Laura Nirider is frustrated by the department's decision to heavily redact 30 pages of police reports.

Nirider asked the public access counselor to get her the unredacted reports. After 111 days, the office managed to trim the amount of redactions, but upheld the Police Department's decision to withhold witness names. Nirider praised the efforts of the attorney general's office, but said she had hoped for more.

"They agreed to withhold the names of all the witnesses, many of whom have been dead for years," she said of the public access counselor. "I mean, come on."

Another agency that has routinely disagreed with the public access counselor is the University of Illinois. The attorney general's office says the university has defied its rulings to release all or parts of records in a number of cases, including the request by The State Journal-Register of Springfield for a document related to the softball scandal that was almost completely blacked out by the university on privacy grounds.

But the attorney general closed the case without issuing a binding opinion.

University spokesman Thomas Hardy said there has been a learning curve for both the university and the attorney general's office.

"It is a complex, nuanced law where the legislature clearly understood that there would be interests that require balancing," he said. "We do the best job we can in terms of balancing those interests."

There have been a number of high-profile cases where public agencies refused to comply with Madigan's office in records disputes and no binding opinion was issued. Last month, the Illinois State Police defied a Madigan decision that the names of gun registrants should be public. The department asked a judge to prevent the release of those records.

Spillane, Madigan's chief of staff, said her office deals with some recalcitrant public agencies, but she feels the vast majority are working in good faith to comply with the law. Even in those cases, however, it doesn't always result in the release of public records.

Ring, the longtime Oak Lawn activist, asked the village for its "master water plan" in early 2010 after repeated water main breaks and neighborhood flooding. "All I want to know is what is happening with our water mains, when they are going to fix them, how much they are going to spend and the timeline," she said.

But the village cited an exemption for government blueprints that could be used by terrorists or vandals.

"You'd think I was going to blow it up or something," Ring said. "It's ridiculous."

Village Clerk Jane Quinlan, who responded to Ring's request, said it was difficult to discern what specific records she wanted. "We do the best we can to be responsive," she said. "We want people to have access, but we have to interpret the FOIA the way we interpret it."

Spillane acknowledged her office could have done more to help Ring.

"This is one of those cases where I wish we didn't have such a backlog to deal with," she said. "I wish we would have had the time to get all the parties on the phone to clarify what she wanted."

Quinlan told the Tribune last week the records Ring wants are probably public and said she would follow up.